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Updates on MA RRP Rule From The MA Department of Labor Standards

As EPA amends the RRP rule, renovators working in states that have taken over the rule from EPA need to know if and how these states incorporate the changes into their own rule. Yesterday I inquired with the State of Massachusetts to find out about a few recent amendments and changes.

One of the good things about the state of Massachusetts taking over the RRP rule is that communications with the Department of Labor Standards (DLS) is much easier and much quicker than trying to get answers from EPA. I also find their staff is much more informed and always helpful. The Q&A below was conducted completely via email (I sent the questions out of the blue) and I got a complete and what I would call an intuitive response in less than 4 hours! Credit to the DLS!

Here is the Q&A

Question: Can you tell me if MA allows the lead safe renovation supervisor to take paint chip samples same as EPA does?

DLS Answer: Massachusetts incorporates the federal protocol by reference in our regulation. LSR Supervisors are authorized to sample painted surfaces in accordance with their training. Of course, they must do adequate sampling for different painting histories of surfaces, document their findings, maintain records of testing and provide documentation to the property owner as required.

Question: Does MA require that the firm provide the renovation checklist to owners and tenants within 30 days of completion of final billing, whichever comes first (just like EPA)?

DLS Answer: Yes. DLS has the same documentation requirements as the federal rule.

Question: EPA requires towns and municipalities to become certified firms and have Certified Renovators before doing their own RRP work on town properties that are target housing and or Child Occupied Facilities. They can however hire out the work to a Certified Firm and therefore would not need to be a Certified Firm if the work is hired out to one. Does the Massachusetts law follow the same requirements?

DLS Answer: Yes. Massachusetts mirrors the requirement but offers the opportunity for the fee to be waived for property owners with trained employees working on their own properties.

Question: Also, does MA now recognize LeadCheck for Drywall and Plaster?

DLS Answer: Yes. But as usual, there is a caveat which is also applicable at the federal level. When the trained individual takes a sample – s/he must follow the prescribed protocols. In order to take advantage of the new approval; they must follow the new testing methods and adequately test surfaces. In some cases, many samples must be taken in order to effectively disclude the work under the rule.

Training Providers will likely being teaching the new methods, however, those who were previously trained will need to justify that they know how to sample in order to validate their findings. Of course, the safest path is to presume the presence of lead.

Question: Any other updates or clarifications I should know about?

DLS Answer: I know you are aware that DLS has been doing enforcement and civil penalties. We are still interested to have the regulated community provide us feedback to provide better regulations. I don’t have a specific date but we will certainly let you know when we are going back to public hearings to update our regulation.

While deleading activities conducted in residences and child-occupied facilities often involve work methods similar to those typically used in renovation, repair or painting (RRP) activities, such as replacing windows, painting and installing vinyl siding, the two types of activities are distinct from each other in terms of purpose and effect.

Deleading work is work conducted to achieve compliance with the Massachusetts Lead Law through the abatement of lead paint hazards. Carried through to completion, deleading work leads to the issuance of a document called a Letter of Compliance, which indicates that the property has met deleading requirements administered by the Childhood Lead Poisoning Program of the Massachusetts Department of Public Health (CLPPP) under the Massachusetts Lead Law and 105 CMR 460.000. In some instances, deleading work takes place after the owner has received an order to bring the property into compliance with the Massachusetts Lead Law. In other instances, the owner voluntarily decides to delead the property and seek a Letter of Compliance.

Renovation work (RRP work) is work conducted for a fee that disturbs more than threshold amounts of painted surfaces in pre-1978 residences (target housing) and child-occupied facilities (kindergartens, daycares, etc.), where the purpose of the work is other than the abatement of lead paint hazards or the achievement of a Letter of Compliance. Renovation work is often carried out to repair, upgrade or beautify the property.

Once you have made the initial determination regarding whether your project is a renovation project or a deleading project, the next question is how to choose a contractor who is licensed and qualified to perform the work. Click on the following link to view a helpful guide on choosing a deleading contractor, “Deleader Contractor Information Bulletin.” Click on the following link to view a helpful guide on choosing a “lead safe” renovation contractor, “Lead Safe Renovation Contractor Information Bulletin.”

Delegated States Likely Better Prepared To Enforce EPA RRP Rule

Several states around the country have assumed administration and enforcement of the EPA RRP rule and others are also thinking of doing the same. EPA actually offers money for the states to use to investigate the practicality of doing so. As this happens each state must create its own rule which is at least as strict as the EPA rule in order to get approval to do so from the EPA. This will lead to confusion for many renovators.

Variances in the rule requirements, from the EPA RRP rule and also from state to state, will make it difficult for renovators to understand the differences and keep up with amendments made by each entity. Renovators working in more than one state many have to become certified firms in each state they operate in and or also with the EPA. Are renovators better off if their states write a better thought out rule? Would renovators be better served if there was just one well written rule for everyone to follow? I predict that confusion may likely contribute to violations and fines for these renovators.

In July of this year Massachusetts took over administration and enforcement of the RRP rule. The Massachusetts Regulations, written by the Massachusetts Department of Occupational Safety (DOS), include many of the OSHA related considerations left out of the EPA RRP rule and the EPA required certified renovator training. As a result, Massachusetts contractors are quickly becoming aware of the already existing OSHA considerations related to working with lead. For example, the Massachusetts firm licensing application includes a requirement that a written respiratory protection and worker health and safety program evidencing compliance with the Massachusetts RRP rule and OSHA medical monitoring requirements be submitted with the application. This will force businesses to have such a program in place before they can be licensed to do RRP work. The requirement will also serve to dictate what the business must have in place should they be inspected by either the DOS or OSHA. I predict the need for OSHA related training will increase dramatically as contractors become aware of violations and fines levied against their peers.

The MA DOS has also started conducting on-site inspections. Though most inspections are triggered by citizens reporting suspected violations, the DOS is also out in the field and is stopping by renovation projects as they come across them. In one of his recent blogs, RRP certification training provider and business coach, Mark Paskell of The Contractor Coaching Partnership, shares a real life story of a painter who was visited by DOS after a neighbor next door to one of his projects called the DOS with concerns about soil contamination. The contractor was in compliance and made out fine, but the DOS left him with a message and asked that he would share it with others. "Tell every contractor you know we're out there enforcing. Tell your friends, your neighbors, other contractors you know, suppliers and trades. We are here and we will enforce the new law"

On July 9th, 2010 The Massachusetts Department of Occupational Safety took over administration and enforcement of the RRP rule from the EPA. Although similar to the EPA rule, the MA RRP rule does differ in many ways. Contractors doing RRP related work in MA should read the MA Regulations to understand the differences.

To do RRP work in MA, renovators should first become licensed to do so. There could be some confusion about this if you are already a Certified Firm through the EPA. Here is some clarification from the MA DOS web site's FAQ page:

Question: How much will I have to pay for a “Lead-Safe Renovation Contractor License?”

DOS Responds: As of July 9, 2010, the fee charged for a Lead-Safe Renovation Contractor License pursuant to 454 CMR 22.00 and 801 CMR 4.02 is $300 plus $75 in surcharges for a five-year license. Fees are set periodically by the Executive Office for Administration and Finance

Question: I applied to EPA for certification as a “Certified Firm” before DOS began enforcing its RRP-related requirements. Will I have to get another license from DOS in order to perform RRP-related work in Massachusetts?

DOS Responds: If you submitted an application to EPA to become certified as a “Certified Firm” before July 9, 2010, you will not need to obtain a “Lead-Safe Renovation Contractor License” from DOS until the certification that you received from EPA expires. Save mailing receipts. As provided by 454 CMR 22.03(3)(b) and 22.04(3), you will need to apply for a Contractor Licensing Waiver in order to legally perform Renovation Work in Massachusetts, however. You will not be required to pay another licensing fee in order to get this waiver. If you applied for EPA certification after July 9, 2010, you will need to become licensed as a “Lead-Safe Renovation Contractor” pursuant to 454 CMR 22.00 in order to perform RRP-related work in Massachusetts.

I just wanted to say thank you for your efforts to keep us informed.

"Thank you again for the hundreth time for keeping a vigil on this business nightmare. Your site is one of the best resources we have to stay on level ground"

Christian Peter

"I am quite impressed with all the confusion out there at Shawn McCadden’s clear and concise voice that continues to help contractors and those involved in this industry truly understand the rule. His efforts should be applauded."

Christopher Wagner, LBPFiles

"RRPedia is an accurate and contractor friendly interpretation of the very complex and confusing EPA RRP rule"

"Thanks for taking the time to write the blog. It's about the only place one can go to get some serious info on this dreadful subject"

"I would like to begin by thanking Shawn for all of his postings and education that he has been sharing with the remodeling industry. He has personally been extremely helpful in guiding me through various interpretations of the RRP rule, his advice and knowledge are priceless."

Michael A. Mahoney

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